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2015 DIGILAW 1920 (MAD)

Constance Rani v. Salai @ Sridharan

2015-04-16

K.K.SASIDHARAN

body2015
Judgment :- 1. The petitioner, earlier, filed a suit in O.S.No.442 of 1996, before the learned Additional District Munsif, Padmanabapuram, against Thiru.Krishnaraj and Thiru.Isaac David, praying for a Judgment and Decree of declaration and recovery of possession. The suit was dismissed by the Trial Court, by Judgment and Decree, dated 19.09.2000. The related first appeal in A.S.No.127 of 2000 was dismissed by the learned Subordinate Judge, Padmanabapuram. The petitioner preferred second appeal in S.A.No.2114 of 2002 before this Court and the same was admitted. During the currency of second appeal, the petitioner filed a miscellaneous petition in M.P.No.1 of 2007, before this Court, for injunction. The first respondent therein filed a counter affidavit stating that he has no intention to put up construction. Recording the same, this Court by order, dated 28.06.2007, dismissed the miscellaneous petition. 2. The petitioner, thereafter, filed a suit in O.S.No.106 of 2007, before the learned District Munsif, Padmanabhapuram, against the respondent, praying for a Judgment and Decree of permanent injunction. The respondent entered appearance and contended that the first respondent in S.A.No.2114 of 2002 partitioned the property orally and the suit property was allotted to his share. According to the respondent, he has already completed construction and nothing survives for adjudication. The stand taken by the respondent before the Trial Court made the petitioner to file an interlocutory application in I.A.No.285 of 2008 to amend the plaint for the purpose of seeking a decree of mandatory injunction. The interlocutory application was rejected by the Trial Court, by order, dated 06.08.2009, primarily on the ground that similar plea was negatived earlier in O.S.No.442 of 1996 and related appeal in A.S.No.127 of 2000 and S.A.No.2114 of 2002. The order, dated 06.08.2009, is under challenge in this civil revision petition. 3. Heard the learned counsel for respective parties. 4. There is no dispute that the petitioner, earlier, filed a suit in O.S.No.442 of 1996, before the learned Additional District Munsif, Padmanabapuram. The suit was dismissed by the Trial Court, by Judgment and Decree, dated 19.09.2000. The Decree, dated 19.09.2000, was confirmed by the First Appellate Court in A.S.No.28.08.2002. It is also not in dispute that related second appeal in S.A.No.2114 of 2002 is pending before this Court. The first respondent in S.A.No.2114 of 2002 has given an undertaking that he has no intention to put construction on the property in dispute. The Decree, dated 19.09.2000, was confirmed by the First Appellate Court in A.S.No.28.08.2002. It is also not in dispute that related second appeal in S.A.No.2114 of 2002 is pending before this Court. The first respondent in S.A.No.2114 of 2002 has given an undertaking that he has no intention to put construction on the property in dispute. Based on the said undertaking, this Court by order dated 28.06.2007, closed the miscellaneous petition in M.P.No.1 of 2007 in S.A.No.2114 of 2002. 5. The petitioner, having found that the respondent made an attempt to put up construction, filed a fresh suit in O.S.No.106 of 2007, before the learned District Munsif, Padmanabhapuram, against the respondent, praying for a Judgment and Decree of permanent injunction. In the suit, the respondent has taken up a stand that he got the property in dispute through first respondent in S.A.No.2114 2002 and put up construction. It was only under such circumstances, the petitioner filed an interlocutory application in I.A.No.285 of 2008, before the Trial Court. The interlocutory application was rejected by the Trial Court, by order dated 06.08.2009, primarily on the ground that similar plea was negatived in O.S.No.442 of 1996. I am not inclined to accept the views expressed by the learned Trial Judge. 6. The respondent claimed the property in question only on the ground that it was allotted to him by way of oral partition by the first respondent in S.A.No.2114 of 2002. Therefore, a new cause of action has arisen for the petitioner to file a suit in O.S.No.106 of 2007. It is not in dispute that the respondent has taken up a contention that he has already put up a construction. Such being the factual position, the petitioner was correct in filing interlocutory application in I.A.No.285 of 2008. The pendency of second appeal in S.A.No.2114 of 2002 has noting to do with the interlocutory application in I.A.No.285 of 2008 to amend the plaint for the purpose of seeking a decree of mandatory injunction. 7. In the result, the order, dated 06.08.2009, in I.A.No.285 of 2008 in O.S.No.107 of 2007, on the file of learned District Munsif, Padmanabapuram, is set aside. The interlocutory application in I.A.No.285 of 2008 is allowed. The Trial Court is directed to give reasonable opportunity to the respondent to file additional written statement in view of the amendment made to the plaint. 8. The interlocutory application in I.A.No.285 of 2008 is allowed. The Trial Court is directed to give reasonable opportunity to the respondent to file additional written statement in view of the amendment made to the plaint. 8. In the upshot, I allow the civil revision petition. No costs. Consequently, connected miscellaneous petition is closed.